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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled1
An act relating to mortgage foreclosures; amending s.2
95.11, F.S.; reducing the limitations period for3
commencing an action to enforce a claim of a4
deficiency judgment subsequent to a foreclosure5
action; providing for application to existing causes6
of action; amending s. 702.10, F.S.; expanding the7
class of persons authorized to move for expedited8
foreclosure; defining the term "lienholder"; providing9
requirements and procedures with respect to an order10
directed to defendants to show cause why a final11
judgment of foreclosure should not be entered;12
providing that certain failures by a defendant to make13
certain filings or to make certain appearances may14
have specified legal consequences; requiring the court15
to enter a final judgment of foreclosure and order a16
foreclosure sale under certain circumstances; amending17
a restriction on a mortgagee to request a court to18
order a mortgagor defendant to make payments or to19
vacate the premises during an action to foreclose on20
residential real estate to provide that the21
restriction applies to all but owner-occupied22
residential property; providing a presumption23
regarding owner-occupied residential property;24
requesting the Supreme Court to adopt rules and forms25
for use in expedited foreclosure proceedings; creating26
s. 702.11, F.S.; providing for expedited foreclosure27
proceedings for abandoned residential real property;28
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
providing procedures and requirements for such29
foreclosures; creating s. 702.12, F.S.; requiring30
certain documents to be filed contemporaneously with31
the filing of an initial complaint for foreclosure;32
providing legislative intent; providing that failure33
to file such documents does not affect title to34
property subsequent to a foreclosure sale; creating s.35
702.13, F.S.; providing for case management36
conferences in foreclosure proceedings; providing that37
a court may not order a continuance in a mortgage38
foreclosure proceeding unless the owner pays39
assessments due to a condominium, cooperative, or40
homeowners' association; providing application of this41
act to existing cases and causes of action and42
existing notes and mortgages; providing an effective43
date.44
45
Be It Enacted by the Legislature of the State of Florida:46
47
Section 1. Paragraph (b) of subsection (2) of section48
95.11, Florida Statutes, is amended, and paragraph (h) is added49
to subsection (4) of that section, to read:50
95.11 Limitations other than for the recovery of real51
property. — Actions other than for recovery of real property shall52
be commenced as follows:53
(2) WITHIN FIVE YEARS. — 54
(b) A legal or equitable action on a contract, obligation,55
or liability founded on a written instrument, except for an56
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
action to enforce a claim against a payment bond, which shall be57
governed by the applicable provisions of ss. 255.05(10) and58
713.23(1)(e), and except for an action for a deficiency59
judgment, which shall be governed by paragraph (4)(h).60
(4) WITHIN TWO YEARS. — 61
(h) An action to enforce a claim of a deficiency related62
to a note secured by a mortgage against real property. The63
limitations period shall commence on the 11th day after the64
foreclosure sale or the day after the mortgagee accepts a deed65
in lieu of foreclosure.66
Section 2. The amendment to s. 95.11, Florida Statutes,67
made by this act shall apply to any action commenced on or after68
July 1, 2012, regardless of when the cause of action accrued,69
except that any action that would not have been barred under s.70
95.11(2)(b), Florida Statutes, prior to the amendments made by71
this act may be commenced no later than 5 years after the action72
accrued and in no event later than July 1, 2014, and if the73
action is not commenced by that date, it is barred by the74
amendments made by this act.75
Section 3. Section 702.10, Florida Statutes, is amended to76
read:77
702.10 Order to show cause; entry of final judgment of78
foreclosure; payment during foreclosure. — 79
(1) Any lienholder After a complaint in a foreclosure80
proceeding has been filed, the mortgagee may request an order to81
show cause for the entry of final judgment in a foreclosure82
action. For purposes of this section, the term "lienholder"83
includes the plaintiff and any defendant to the action who holds84
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
a lien encumbering the property or any defendant who, by virtue85
of its status as a condominium association, cooperative86
association, or homeowners' association, may file a lien against87
the real property subject to foreclosure. Upon filing, and the88
court shall immediately review the request and the court file in89
chambers and without a hearing complaint. If, upon examination90
of the court file complaint, the court finds that the complaint91
is verified, complies with s. 702.12, and alleges a cause of92
action to foreclose on real property, the court shall promptly93
issue an order directed to the other parties named in the action94
defendant to show cause why a final judgment of foreclosure95
should not be entered.96
(a) The order shall:97
1. Set the date and time for a hearing on the order to98
show cause. However, The date for the hearing may not be set99
sooner than 20 days after the service of the order. When service100
is obtained by publication, the date for the hearing may not be101
set sooner than 30 days after the first publication. The hearing102
must be held within 90 60 days after the date of service.103
Failure to hold the hearing within such time does not affect the104
validity of the order to show cause or the jurisdiction of the105
court to issue subsequent orders.106
2. Direct the time within which service of the order to107
show cause and the complaint must be made upon the defendant.108
3. State that the filing of defenses by a motion,109
responsive pleading, affidavits, or other papers or by a110
verified or sworn answer at or before the hearing to show cause111
may constitute constitutes cause for the court not to enter the112
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
attached final judgment.113
4. State that any the defendant has the right to file114
affidavits or other papers before at the time of the hearing to115
show cause and may appear personally or by way of an attorney at116
the hearing.117
5. State that, if any the defendant files defenses by a118
motion, a verified or sworn answer, affidavits, or other papers119
or appears personally or by way of an attorney at the time of120
the hearing, the hearing time shall may be used to hear and121
consider the defendant's motion, answer, affidavits, other122
papers, and other evidence and argument as may be presented by123
any defendant or any defendant's counsel, and the court shall124
then make a determination as to whether a preponderance of the125
evidence and the arguments presented support entry of a final126
judgment of foreclosure, and if so, the court shall enter a127
final judgment of foreclosure ordering the clerk of the court to128
conduct a foreclosure sale.129
6. State that, if a the defendant fails to appear at the130
hearing to show cause or fails to file defenses by a motion or131
by a verified or sworn answer or files an answer not contesting132
the foreclosure, such the defendant may be considered to have133
waived the right to a hearing, and in such case, the court may134
enter a default against such defendant and, if appropriate, a135
final judgment of foreclosure ordering the clerk of the court to136
conduct a foreclosure sale.137
7. State that if the mortgage provides for reasonable138
attorney attorney's fees and the requested attorney attorney's139
fees do not exceed 3 percent of the principal amount owed at the140
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
time of filing the complaint, it is unnecessary for the court to141
hold a hearing or adjudge the requested attorney attorney's fees142
to be reasonable.143
8. Attach the form of the proposed final judgment of144
foreclosure the movant requests the court to will enter, if the145
defendant waives the right to be heard at the hearing on the146
order to show cause. The form may contain blanks for the court147
to enter the amounts due.148
9. Require the party seeking final judgment mortgagee to149
serve a copy of the order to show cause on the other parties the150
mortgagor in the following manner:151
a. If a party the mortgagor has been served with the152
complaint and original process, or the other party is the153
plaintiff in the action, service of the order to show cause on154
that party order may be made in the manner provided in the155
Florida Rules of Civil Procedure.156
b. If a defendant the mortgagor has not been served with157
the complaint and original process, the order to show cause,158
together with the summons and a copy of the complaint, shall be159
served on the party mortgagor in the same manner as provided by160
law for original process.161
c. Service of process by publication may not be used162
except as provided in s. 702.11.163
164
Any final judgment of foreclosure entered under this subsection165
is for in rem relief only. Nothing in this subsection shall166
preclude the entry of a deficiency judgment where otherwise167
allowed by law. It is the intent of the Legislature that this168
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
alternative procedure may run simultaneously with other court169
procedures.170
(b) The right to be heard at the hearing to show cause is171
waived if a the defendant, after being served as provided by law172
with an order to show cause, engages in conduct that clearly173
shows that such the defendant has relinquished the right to be174
heard on that order. Such The defendant's failure to file175
defenses by a motion or by a sworn or verified answer,176
affidavits, or other papers or to appear personally or by way of177
an attorney at the hearing duly scheduled on the order to show178
cause presumptively constitutes conduct that clearly shows that179
such the defendant has relinquished the right to be heard. If a180
defendant files defenses by a motion, or by a verified or sworn181
answer, affidavits, or other papers at or before the hearing,182
such action may constitute constitutes cause and may preclude183
precludes the entry of a final judgment at the hearing to show184
cause.185
(c) In a mortgage foreclosure proceeding, when a final186
default judgment of foreclosure has been entered against the187
mortgagor and the note or mortgage provides for the award of188
reasonable attorney attorney's fees, it is unnecessary for the189
court to hold a hearing or adjudge the requested attorney190
attorney's fees to be reasonable if the fees do not exceed 3191
percent of the principal amount owed on the note or mortgage at192
the time of filing, even if the note or mortgage does not193
specify the percentage of the original amount that would be paid194
as liquidated damages.195
(d) If the court finds that all defendants have the196
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
defendant has waived the right to be heard as provided in197
paragraph (b), the court shall promptly enter a final judgment198
of foreclosure without the need for further hearing provided the199
plaintiff has shown entitlement to a final judgment. If the200
court finds that any the defendant has not waived the right to201
be heard on the order to show cause, the court shall then202
determine whether there is cause not to enter a final judgment203
of foreclosure. If the court determines that a preponderance of204
the evidence and the arguments presented support entry of a205
final judgment of foreclosure, the court shall enter a final206
judgment of foreclosure ordering the clerk of the court to207
conduct a foreclosure sale finds that the defendant has not208
shown cause, the court shall promptly enter a judgment of209
foreclosure. If the time allotted for the hearing is210
insufficient, the court may announce at the hearing a date and211
time for the continued hearing. Only the parties who appear,212
individually or through counsel, at the initial hearing need to213
be notified of the date and time of the continued hearing.214
(2) This subsection does not apply to foreclosure of an215
owner-occupied residence. As part of any other In an action for216
foreclosure, and in addition to any other relief that the court217
may award other than residential real estate, the plaintiff the218
mortgagee may request that the court enter an order directing219
the mortgagor defendant to show cause why an order to make220
payments during the pendency of the foreclosure proceedings or221
an order to vacate the premises should not be entered.222
(a) The order shall:223
1. Set the date and time for hearing on the order to show224
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
cause. However, the date for the hearing may shall not be set225
sooner than 20 days after the service of the order. If Where226
service is obtained by publication, the date for the hearing may227
shall not be set sooner than 30 days after the first228
publication.229
2. Direct the time within which service of the order to230
show cause and the complaint shall be made upon each the231
defendant.232
3. State that a the defendant has the right to file233
affidavits or other papers at the time of the hearing and may234
appear personally or by way of an attorney at the hearing.235
4. State that, if a the defendant fails to appear at the236
hearing to show cause and fails to file defenses by a motion or237
by a verified or sworn answer, a the defendant is may be deemed238
to have waived the right to a hearing and in such case the court239
may enter an order to make payment or vacate the premises.240
5. Require the movant mortgagee to serve a copy of the241
order to show cause on the defendant mortgagor in the following242
manner:243
a. If a defendant the mortgagor has been served with the244
complaint and original process, service of the order may be made245
in the manner provided in the Florida Rules of Civil Procedure.246
b. If a defendant the mortgagor has not been served with247
the complaint and original process, the order to show cause,248
together with the summons and a copy of the complaint, shall be249
served on the defendant mortgagor in the same manner as provided250
by law for original process.251
(b) The right of a defendant to be heard at the hearing to252
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
show cause is waived if the defendant, after being served as253
provided by law with an order to show cause, engages in conduct254
that clearly shows that the defendant has relinquished the right255
to be heard on that order. A The defendant's failure to file256
defenses by a motion or by a sworn or verified answer or to257
appear at the hearing duly scheduled on the order to show cause258
presumptively constitutes conduct that clearly shows that the259
defendant has relinquished the right to be heard.260
(c) If the court finds that a the defendant has waived the261
right to be heard as provided in paragraph (b), the court may262
promptly enter an order requiring payment in the amount provided263
in paragraph (f) or an order to vacate.264
(d) If the court finds that the mortgagor has not waived265
the right to be heard on the order to show cause, the court266
shall, at the hearing on the order to show cause, consider the267
affidavits and other showings made by the parties appearing and268
make a determination of the probable validity of the underlying269
claim alleged against the mortgagor and the mortgagor's270
defenses. If the court determines that the plaintiff mortgagee271
is likely to prevail in the foreclosure action, the court shall272
enter an order requiring the mortgagor to make the payment273
described in paragraph (e) to the plaintiff mortgagee and274
provide for a remedy as described in paragraph (f). However, the275
order shall be stayed pending final adjudication of the claims276
of the parties if the mortgagor files with the court a written277
undertaking executed by a surety approved by the court in an278
amount equal to the unpaid balance of the lien being foreclosed279
the mortgage on the property, including all principal, interest,280
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
unpaid taxes, and insurance premiums paid by a plaintiff the281
mortgagee.282
(e) If In the event the court enters an order requiring283
the mortgagor to make payments to the plaintiff mortgagee,284
payments shall be payable at such intervals and in such amounts285
provided for in the mortgage instrument before acceleration or286
maturity. The obligation to make payments pursuant to any order287
entered under this subsection shall commence from the date of288
the motion filed under this section hereunder. The order shall289
be served upon the mortgagor no later than 20 days before the290
date specified for the first payment. The order may permit, but291
may shall not require, the plaintiff mortgagee to take all292
appropriate steps to secure the premises during the pendency of293
the foreclosure action.294
(f) If In the event the court enters an order requiring295
payments, the order shall also provide that the plaintiff is296
mortgagee shall be entitled to possession of the premises upon297
the failure of the mortgagor to make the payment required in the298
order unless at the hearing on the order to show cause the court299
finds good cause to order some other method of enforcement of300
its order.301
(g) All amounts paid pursuant to this section shall be302
credited against the mortgage obligation in accordance with the303
terms of the loan documents;, provided, however, that any304
payments made under this section do shall not constitute a cure305
of any default or a waiver or any other defense to the mortgage306
foreclosure action.307
(h) Upon the filing of an affidavit with the clerk that308
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
the premises have not been vacated pursuant to the court order,309
the clerk shall issue to the sheriff a writ for possession which310
shall be governed by the provisions of s. 83.62.311
(i) For purposes of this subsection, there is a rebuttable312
presumption that a residential property for which a homestead313
exemption for taxation was granted according to the certified314
rolls of the latest assessment by the county property appraiser,315
before the filing of the foreclosure action, is an owner-316
occupied residential property.317
(3) The Supreme Court is requested to amend the Rules of318
Civil Procedure to provide for expedited foreclosure proceedings319
in conformity with this section. The Supreme Court is requested320
to develop and publish forms for use under this section.321
Section 4. Section 702.11, Florida Statutes, is created to322
read:323
702.11 Expedited foreclosure of abandoned residential real324
property. — 325
(1) As used in this section, the term "abandoned326
residential real property" means residential real property that327
is deemed abandoned upon a showing that:328
(a) A duly licensed process server has made at least three329
attempts to locate an occupant of the residential real property.330
The attempts must have been made at least 72 hours apart, and at331
least one of such attempts must have been made before 12 p.m.,332
between 12 p.m. and 6 p.m., and between 6 p.m. and 10 p.m. Each333
attempt must include physically knocking or ringing at the door334
of the residential real property and such other efforts as are335
normally sufficient to obtain a response from an occupant. The336
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
process server must have no business affiliation with the owner337
or servicer of any mortgage on the residential real property or338
with the attorney or law firm representing such owner or339
servicer.340
(b) Two or more of the following conditions appear:341
1. Windows or entrances to the premises are boarded up or342
closed off or multiple window panes are broken and unrepaired.343
2. Doors to the premises are smashed through, broken off,344
unhinged, or continuously unlocked.345
3. Rubbish, trash, or debris has accumulated on the346
mortgaged premises.347
4. The premises are deteriorating and are below or in348
imminent danger of falling below minimum community standards for349
public safety and sanitation.350
5. Interviews with at least two neighbors in at least two351
different households indicate that the residence has been352
abandoned. The neighbors must be adjoining, across the street in353
view of the home, or across the hall in a condominium or354
cooperative.355
356
The process server making attempts to locate an occupant of the357
residential real property may provide, by affidavit and358
photographic or other documentation, evidence of the condition359
of the residential real property.360
(2)(a) Any party to a foreclosure action regarding361
residential real property appearing to be abandoned must file a362
petition before the court seeking to determine the status of the363
residential real property and to invoke an expedited foreclosure364
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proceeding relating to the property. Upon the filing of an365
affidavit of diligent search and inquiry and the affidavit or366
documentary evidence set forth in subsection (1), the clerk367
shall, upon request of the petitioner, issue subpoenas to368
electrical and water utilities serving the residential real369
property commanding disclosure of the status of utility service370
to the subject property, including whether utilities are371
currently turned off and whether all outstanding utility372
payments have been made and, if so, by whom.373
(b) If, after review of the response of the utility374
companies to the subpoenas and all other matters of record, the375
court determines the property to have been abandoned, the party376
entitled to enforce the note and mortgage encumbering the377
residential real property shall be entitled to foreclose the378
mortgage using the expedited mortgage foreclosure procedures set379
forth in s. 702.10 upon service by publication. However, service380
must be made on associations holding liens for dues and381
assessments and all other junior lienholders as required by law.382
Section 5. Section 702.12, Florida Statutes, is created to383
read:384
702.12 Elements of foreclosure complaint; lost, destroyed,385
or stolen note affidavit. — The complaint in a foreclosure action386
alleging breach of a promissory note secured by a mortgage must387
contain affirmative allegations expressly made by the plaintiff388
at the time the proceeding is commenced that the plaintiff is389
the holder of the original note secured by the mortgage or must390
allege, with specificity, the factual basis by which the391
plaintiff is a person entitled to enforce the note under s.392
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673.3011 or under other applicable law. When a party has been393
delegated the authority to institute a mortgage foreclosure394
action on behalf of the holder of the note, the complaint shall395
describe the authority of the plaintiff and identify, with396
specificity, the document that grants the plaintiff the397
authority to act on behalf of the holder of the note.398
(1) Unless the complaint includes a count to enforce a399
lost, destroyed, or stolen instrument, the plaintiff shall cause400
to be filed with the court, contemporaneously with and as a401
condition precedent to the filing of the complaint for402
foreclosure, either:403
(a) The original promissory note; or404
(b) Certification, under penalty of perjury, that the405
plaintiff is in physical possession of the original promissory406
note. Such certification must set forth the physical location of407
the note, the name and title of the individual giving the408
certification, and the name of the person who personally409
verified such physical possession and the time and date on which410
possession was verified. Correct copies of the note and all411
allonges thereto shall be attached to the certification. The412
original note shall then be filed with the court prior to the413
entry of any judgment of foreclosure or judgment on such note.414
However, if the real property is in two or more jurisdictions415
and the original note has been filed with the clerk in another416
jurisdiction, the court may accept any competent proof of such417
note filed in the other jurisdiction.418
(2) When the complaint includes a count to enforce a lost,419
destroyed, or stolen instrument, an affidavit executed under420
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penalty of perjury shall be attached to the complaint. The421
affidavit shall:422
(a) Detail a clear chain of all assignments for the423
promissory note that is the subject of the action.424
(b) Set forth facts showing that the plaintiff is entitled425
to enforce a lost, destroyed, or stolen instrument pursuant to426
s. 673.3091.427
(c) Include as exhibits to the affidavit such copies of428
the note and allonges thereto, assignments of mortgage, audit429
reports showing physical receipt of the original note, or other430
evidence of the acquisition, ownership, and possession of the431
note as may be available to the plaintiff.432
(3) If the foreclosure case is dismissed without prejudice433
and without completion of a foreclosure sale, upon request of434
the plaintiff the clerk must return the original promissory note435
to the plaintiff without need for further order of the court.436
(4) The Legislature intends that the requirements of this437
section are to expedite the foreclosure process by ensuring438
initial disclosure of a plaintiff's status and the facts439
supporting that status and thereby ensuring the availability of440
documents necessary to the prosecution of the case. This section441
does not modify existing law regarding standing or real parties442
in interest. The court may sanction the plaintiff for failure to443
comply with this section, but any noncompliance with this444
section does not affect the validity of a foreclosure sale or445
title to real property subsequent to a foreclosure sale.446
Section 6. Section 702.13, Florida Statutes, is created to447
read:448
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
702.13 Defaults and case management conferences in449
foreclosure actions. — 450
(1) In any mortgage foreclosure case in which all451
defendants have been served and the defendants have failed to452
timely file an answer or other response denying, contesting, or453
asserting defenses to the plaintiff's entitlement to the454
foreclosure, the court, on its own motion or motion of any455
party, may enter defaults against nonresponding parties in456
accordance with the Florida Rules of Civil Procedure.457
Thereafter, the court shall direct the plaintiff in the458
foreclosure action to file all affidavits, certifications, and459
proofs necessary or appropriate for the entry of a summary460
judgment of foreclosure within a time certain or show cause why461
such a filing should not be made. The filing of these materials462
shall be construed as a motion for summary judgment, and the463
court may enter final summary judgment or set the case for trial464
in accord with its sound judicial discretion. This subsection465
does not restrict the authority of the court to set aside a466
default or a judgment granted thereon pursuant to the Florida467
Rules of Civil Procedure.468
(2) After all parties have been served and not earlier469
than 48 days after the filing of the foreclosure case, any party470
may request a case management conference at which the court471
shall set definite timetables for moving the case forward. If472
any other hearings are set in the case, the case management473
conference shall be conducted at the same time as the scheduled474
case. At the conference, the court may grant extensions or stays475
in the proceedings on a showing that the plaintiff and property476
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
owner defendant are engaged in mediation or good faith477
negotiations with regard to a loan modification or other478
settlement only if the property owner pays, or the lender agrees479
to pay, applicable condominium, cooperative, or homeowners'480
association assessments coming due after the entry of the481
extension or stay and keeps such assessments paid current482
through the conclusion of the foreclosure action.483
Section 7. The amendments to s. 702.10, Florida Statutes,484
and the creation of ss. 702.11 and 702.13, Florida Statutes, by485
this act are remedial in nature and shall apply to causes of486
action pending on the effective date of this act. Section487
702.12, Florida Statutes, as created by this act, applies to488
cases filed on or after July 1, 2012.489
Section 8. The Legislature finds that this act is remedial490
in nature. Accordingly, it is the intent of the Legislature that491
this act shall apply to all mortgages encumbering real property492
and all promissory notes secured by a mortgage, whether executed493
before, on, or after the effective date of this act.494
Section 9. This act shall take effect July 1, 2012.495